By John Ballard
Yesterday's arguments were pro-forma. I don't think anyone seriously thought the court would dodge the issue and put the matter off until 2015 or later. Between now and then too much might happen. (More about that in a moment.)
Today's focus was squarely on the constitutionality of the individual mandate. The air is clogged with all kinds of responses, but this from SCOTUS Blog is as good as anyone might want.
If Justice Anthony M. Kennedy can locate a limiting principle in the federal government�s defense of the new individual health insurance mandate, or can think of one on his own, the mandate may well survive. If he does, he may take Chief Justice John G. Roberts, Jr., and a majority along with him. But if he does not, the mandate is gone. That is where Tuesday�s argument wound up � with Kennedy, after first displaying a very deep skepticism, leaving the impression that he might yet be the mandate�s savior.
If the vote had been taken after Solicitor General Donald B. Verrilli, Jr., stepped back from the lectern after the first 56 minutes, and the audience stood up for a mid-argument stretch, the chances were that the most significant feature of the Affordable Care Act would have perished in Kennedy�s concern that it just might alter the fundamental relationship between the American people and their government. But after two arguments by lawyers for the challengers � forceful and creative though they were � at least doubt had set in and expecting the demise of the mandate seemed decidedly premature.
[Lots more at the link, and very well written, too.]
That's about what I have been hearing before now.
We'll just have to wait for confirmation, but most of the smart people I have read are in agreement that the mandate will survive, not as much because it is or isn't Constitutional, but because without it too many people will be tempted to game the health care and insurance sectors even more than they do now. As I have said until I'm blue in the face, insurance is about risk management, not health care. Health care is about risk management as well, but the two intersect not at health care but money -- how much it will cost and who will pay.
Now to the matter of letting time pass. I heard a version of this story years ago, but thanks to Google this one is even better.
There�s a famous story involving the Persian philosopher and fool-figure, Mullah Nasrudin. One day, he was watching the Sultan of Baghdad tame a new horse. Suddenly, the Sultan was flung from the back of a new wild stallion brought to his stables from Bactria (modern-day Afghanistan). The horse was wild and uncontrollable. Nasrudin began laughing because the Sultan was covered in dirt and manure.
Angrily, the Sultan rose to his feet and ordered his bodyguards to arrest Nasrudin. "Why are you laughing at me?" the Sultan asked. "Because I was flung from my horse?"
"No," said Nasrudin the fool. "Because you are trying so hard to tame the horse in a single day, and failing. You should stick to what you are good at, not breaking horses."
The Sultan grew red-faced. "I suppose," he said, "that you could do better?"
"Oh yes," said Nasrudin, and he grew boastful. "I could tame that horse," and here he snapped his fingers, "like that! But better than that� because of my great wisdom, if I had a year�. well, I could teach that stallion to talk!"
Nasrudin�s followers wept, and tore at their beards. They urged Nasrudin to come with them, and escape! But Nasrudin only went into the paddock with the wild horse, and picked a handful of sweet grass, and tried to get the horse to eat it. Again and again, the horse only ran away, or kicked at him. This went on for months. Finally, one of Nasrudin�s disciples asked him, "Master, why do you not run away? The horse is dangerous, and the Sultan is even more dangerous. Why not give up this mad pursuit?"
"But, master" said the student in a doubtful voice, "that does not explain why you persist, day after day, in trying to tame this dangerous and wild stallion."
Nasrudin smiled, "Oh, that. Well, a lot can happen in a year. It may even be that I shall succeed in teaching the horse to talk."